The Aftermath, Continued

Add strange bedfellows George Will and the Washington Post’s Ezra Klein (wasn’t he the young naïf who made that idiotic comment a while back about the Constitution being hard to understand because it was over 100 years old?) to the camp saying Roberts’ opinion is actually a conservative victory. Says Will:

Conservatives won a substantial victory on Thursday. The physics of American politics – actions provoking reactions – continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John Roberts has served this cause. . .

When Nancy Pelosi, asked where the Constitution authorized the mandate, exclaimed “Are you serious? Are you serious?” she was utterly ingenuous. People steeped in Congress’ culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage. By sharpening many Americans’ constitutional consciousness, the debate has resuscitated the salutary practice of asking what was, until the mid-1960s, the threshold question regarding legislation. It concerned what James Q. Wilson called the “legitimacy barrier”: Is it proper for the federal government to do this? Conservatives can rekindle the public’s interest in this barrier by building upon the victory Roberts gave them in positioning the court for stricter scrutiny of congressional actions under the Commerce Clause.

The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”

“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”

This last bit from Randy Barnett strikes me as especially significant. UPDATE: More from Randy Barnett here: “Whatever happens at the polls, however, by affirming that the Commerce Clause and the Necessary and Proper Clause of the Constitution have judicially enforceable limits, today’s decision will be a landmark of constitutional law.”

Program note: I’ll be on the road almost all day today and out of touch with the site. Tomorrow gets even weirder: I’m off to Bulgaria for five days, and will be sending dispatches from there. Meanwhile, enjoy this from our friends at Reason, making the case that politically, this decision causes problems for Obama: